AOS court case threatens our physician status
June 21, 2012
An Urgent Message from AOA President Dori Carlson, O.D.
While most of the American Optometric Society (AOS) lawsuit against the American Board of Optometry (ABO) has been defeated even before going to trial, the lone remaining claim will damage the profession and disrupt AOA advocacy. The AOS lawsuit is no longer about board certification, rather it is about AOS legal tactics threatening our core identity and our future standing in all aspects of health care. Thus, no matter your personal opinion about board certification, the line has been crossed by the AOS, either by design or failure to consider the dangerous consequences of placing our status as physicians in jeopardy.
It is my sad duty to inform every AOA member that last week the legal tactics of the AOS resulted in a federal judge stating that optometrists are not physicians, thus creating a serious threat to our profession. It now appears possible if this claim goes to trial a federal judge could take action precipitated by the AOS that would be the most decisive and far-reaching reversal of our profession’s progress ever and would be seized upon by medicine and third-party payers to oppose us for decades to come in state, federal and third-party advocacy arenas.
Optometrists can, and do, often disagree about which state’s scope expansion bill or federal legislative or regulatory victory has advanced our profession the most over the last 25 years. However, one undeniable fact understood by every OD is that the 1986 federal law that recognizes optometrists as physicians in Medicare has been the foundation of all of our advocacy success and the underpinning of our profession’s standing as health care providers.
Unfortunately, after withstanding a quarter century of withering attacks from the House of Medicine and the even more powerful insurance industry, our hard-won, federally recognized physician status is now at extreme risk of being wiped away by a federal judge at the urging of a small group within optometry led by the AOS. By taking their endless war against the ABO and by extension, the AOA, into federal court, a handful of our own colleagues are doing what medicine and insurers have been unable to do. They’ve put our physician status on trial and in pursuing their limited vision for optometry in court, they’ve opened the door to undoing all that we’ve gained from state, federal and third-party advocacy during the professional lifetime of nearly every active AOA member.
How is this possible?
The remaining claim against the ABO, due to proceed to trial within a few weeks, in essence centers on whether or not optometrists are physicians. As it stands now, the answer will be determined by a federal judge, and he’s already made it clear that he’s skeptical about optometry. In fact, in his summary judgment order from last week, Federal District Court Judge A. Howard Matz said very plainly that “Optometrists are not physicians.”
The judge’s statement is no accident. From the beginning, the AOS has claimed that ABO certification is not equivalent to board certification for physicians, and that it’s literally false for optometrists to claim that they are board certified by the ABO. Court documents make it clear that the AOS’s case rests heavily upon convincing the judge that board-certified optometrists would be deceiving the public for making the factually correct statement that they achieved the requirements established by the ABO. The essence of their argument is that for an optometrist to be board certified is misleading to the public because the board certification process is unique to medical education and medical residency. This argument, that we are not worthy of parity with MDs, is expected from medicine, never from a group claiming to represent optometry.
AOS doctors and those who agree with them on this issue have always been free to decline to pursue ABO certification, to remain ineligible for the Medicare and other bonus payments linked to board certification and demonstration of maintenance of certification now and into the future and to run their own practices as they see fit. From the beginning of this case, we’ve wondered why they would go to court to deny a colleague’s right to make a different choice and to pursue parity with Medicine.
Lawsuits often bring forth unintended and unexpected consequences. In this case, we have, on the surface, what appears to be debate about optometric board certification that in the light of a judge’s statement last week is now transformed into a lawsuit threatening our physician status. We sincerely hope that it was never the intention of any fellow optometrist to be the cause of a self-inflicted wound to the profession. However, that matters little since allowing the AOS lawsuit to go to trial would cause irreparable harm to the professional future of every optometrist.
Although saddened by this turn of events, we have not given up. As the AOA has done in every state, federal and third-party battle since 1986, we will vigorously defend optometry’s physician status in this case through every means available to us.
Clearly, this is a time for unity. We all must come together to fight for our survival as an independent profession. No matter your personal opinion about board certification, the fight for our physician status is on the line.
Dori Carlson, O.D.
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